Opinion
3:22-cv-0199-AR
03-30-2022
ANITA I. KISHNA, Plaintiff, v. (NONE LISTED) Defendant.
FINDINGS AND RECOMMENDATION
JEFFREY ARMISTEAD UNITED STATES MAGISTRATE JUDGE
Introduction
Plaintiff Anita I. Kishna (“Kishna”), representing herself, filed this lawsuit on February 7, 2022. (Compl., ECF No. 2). Because her Complaint did not allege a short and plain statement showing she was plausibly entitled to relief, the court instructed Kishna to file an Amended Complaint. (Order to Amend, ECF No. 5). The court also advised Kishna to “ensure the amended complaint is readable, names a defendant or defendants, specifies the basis for jurisdiction, and captions and numbers her claims clearly.” (Id.) Kishna timely filed an Amended Complaint. (ECF No. 7). Unfortunately, although the court recognizes that Kishna is experiencing a high level of distress in her life, her Amended Complaint contains the same deficiencies as her original pleading and is not actionable. The court recommends this action be dismissed with prejudice.
Kishna's Amended Complaint is an approximately forty-page, unnumbered, and handwritten document describing her grievances in narrative form. For clarity in pinpoint citations, the court refers to pages in the order they were submitted.
Kishna also filed an application to proceed in forma pauperis (ECF No. 1) and a motion for appointment of counsel (ECF No. 3). Based on the court's review of Kishna's IFP application, it appears that she is unable to pay the costs of commencing this action, and, therefore, her application should be granted. Kishna's motion for appointment of counsel should be denied.
Legal Standard
When a complaint is filed by a plaintiff proceeding in forma pauperis, Congress has directed that “the court shall dismiss the case at any time if the court determines that” the action is: (1) “frivolous or malicious;” (2) “fails to state a claim on which relief may be granted;” or (3) “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Courts preliminarily screen a case to determine whether complaints brought by selfrepresented litigants and litigants proceeding in forma pauperis raise cognizable claims. See, e.g., O'Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008) (“After a prisoner applies for in forma pauperis status and lodges a complaint with the district court, the district court screens the complaint and determines whether it contains cognizable claims. If not, the district court must dismiss the complaint.”); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (noting that “section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners”).
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(A)(2). When Reviewing the Sufficiency of a Complaint filed by a pro se litigant, the court must liberally construe the pleadings and accept as true all of the factual allegations contained therein. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, ” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, stating a claim requires “the plaintiff [to] plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Self-represented (or pro se) plaintiffs are held to less stringent standards than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Additionally, self-represented litigants are “entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Garity v. APWU Nat'l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (per curiam).
Discussion
Kishna's Amended Complaint is difficult to follow, but she appears to allege that, in recent years, she has experienced harassment and abuse at various locations in the PortlandMetro area, including TriMet, Starbucks, the post office, FedEx stores, and a local cafe. (Am. Compl. at 19). She alleges few details about the nature of this harassment, describing generally “attacks” and “activity targeting [her] head/brain/skull.” (Id. at 9, 11, 19, 32). Kishna alleges that these attacks began in 1995/1996 and intensified in 2001/2002. (Id. at 9). She contends that the attacks further intensified in March 2021 “after my [doctor] reduced medication and took me off my injection.” (Id. at 32). The activity Kishna describes appears to be loud noises, such as slamming doors, banging pots and pans, car horns, and “nonstop talking and talking” in public spaces. (Id. at 11). Kishna alleges the sources of these noises include the general public and her mother, but she does not specify any defendants by name. (Id. at 19). She writes that, “as regards naming the defendants, the list of things done to me regarding the individuals used to stalk me, harass me, abuse me, torture me, etc. over a [20 to 24 year] period is too long to list.” (Id. at 6).
Kishna describes other concerns, including being “locked out” of her phone and computer, dogs “being found tied out at seashore” at “high tide, ” friction with her mother about household chores and meal preferences, and an unclear practice she refers to as the “boomerang method.” (Id. at 8, 15, 22). The court could not identify any discernable claims from these details.
Kishna's Amended Complaint remains deficient in several respects. As an initial matter, Kishna again has not identified any defendants by name. As such, her complaint cannot be served on any opposing parties. Additionally, even construing Kishna's allegations liberally, she has not alleged facts that support plausible claims for harassment or abuse. The activities described by Kishna as harassment are common noises heard in public spaces, which unfortunately appear to exacerbate a brain injury or mental condition that she has lived with for several decades. The court is sympathetic to Kishna's heightened sensitivity to these stimuli; however, these noises, without more, do not support claims for harassment or abuse.
Finally, even if Kishna had stated a plausible claim against named defendants, the court would not have jurisdiction to hear her lawsuit. Federal courts are courts of limited jurisdiction, unlike state courts, which are courts of general jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). This means that federal courts may hear only certain kinds of cases: (1) “federal question” cases and (2) “diversity of citizenship” cases. See id.; United States v. Jacobo Castillo, 496 F.3d 947, 951 (9th Cir. 2007) (en banc). A “federal question” case involves claims arising under the Constitution or a federal law or treaty. See 28 U.S.C. § 1331. A “diversity of citizenship” case involves citizens of different states where the amount of damages in controversy exceeds $75,000. See 28 U.S.C. § 1332(a)(1). Here, Kishna's allegations of harassment and abuse do not arise under the Constitution or federal law; thus, they do not raise “federal question” jurisdiction. Similarly, because Kishna has not specified a defendant or sought damages in her Amended Complaint, she cannot rely on “diversity of citizenship” jurisdiction.
Conclusion
Based on the foregoing, the court recommends Kishna's Amended Complaint (ECF No. 7) be DISMISSED with prejudice. Additionally, Kishna's application to proceed in forma pauperis (ECF No. 1) should be GRANTED and her motion for appointment of counsel (ECF No. 3) should be DENIED.
Scheduling Order
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.